Is there a difference between Micheal Flynn's actions and John Kerry's actions, with regards to legality?

Question

Michael Flynn was initially investigated for talking with foreign leaders outside of standard diplomatic channels and behind the backs of the then current Obama administration:

Flynn asked Russia to refrain from “escalating the situation in response” to sanctions that then-President Obama had imposed that day on Russia for meddling in the US election. - bostonglobe

But recently it was revealed that Former Secretary of State John Kerry have been doing what seems to be the same thing:

Efforts by former Secretary of State John Kerry to conduct shadow diplomacy with Iranian officials in a bid to save the landmark nuclear deal are being met with a cool reception by the Trump administration and allies on Capitol Hill

Reports emerged late Friday indicating Kerry has been holding secret talks with top Iranian officials - freebeacon.com

Is there a difference between what the two men did (and Kerry is still doing)? And if not, should Kerry also be investigated just like Michael Flynn?

Answer 1

Technically speaking, both men violated the Logan Act

The Logan Act (1 Stat. 613, 18 U.S.C. § 953, enacted January 30, 1799) is a United States federal law that criminalizes negotiation by unauthorized persons with foreign governments having a dispute with the United States. The intent behind the Act is to prevent unauthorized negotiations from undermining the government's position. Violation of the Logan Act is a felony.

Only two people have ever been indicted on charges of violating the Act, one in 1802 and the other in 1852. Neither was convicted of violating the Act.

The problem is that the Logan Act is never enforced. Few people are interested in negotiating with foreign governments for the US, let alone doing so on their own dime. More importantly, those foreign governments won't just negotiate with anyone. So if you're going to do this, you have to have some connection with the existing government. Jimmy Carter (39th US president) went to North Korea on his own in 1994 and negotiated a deal about nuclear weapons. Then-President Clinton accepted the deal.

So, to answer the question at hand, no, there's no practical difference between Flynn and Kerry. Both were acting outside official US channels to shape US policy. While its possible Kerry might get investigated, it's highly unlikely he will ever face any charges for negotiating with Iran, just as Flynn faced no charges for his negotiations (he pleaded guilty to lying to the FBI, and was fired for lying to VP Pence).

Answer 2

I don't see this point made, so I'll add it.

John Kerry is and has been a lobbyist since his retirement from secretary of state. There's no legal reason why he can't lobby for policies that he helped create while in office.

The Iran nuclear deal is policy, at least it is until Trump scraps it, by executive order or other means. Trump has spoken against the deal and it may be officially ended now. It was policy when Kerry met with Iranian leaders. Having a meeting about existing policy (not about making new policy) doesn't violate the Logan act.

Source.

Relevant quotes

But according to University of Texas School of Law professor Steve Vladeck, who explained the history of the Logan Act to The Atlantic in early 2017, the Logan Act wouldn’t apply to anything Kerry is doing, in part because the Iran nuclear deal is still official government policy

and

“The act only applies to conduct that is designed to ‘defeat the measures of the United States’ or influence the conduct of foreign governments,” Vladeck said. “If all Kerry is doing is working to keep in place something that’s still technically a ‘measure of the United States,’ I don’t see how the statute would apply even if someone was crazy enough to try it."

Despite that, I'm quite sure that legal arguments can be found to the contrary, but since this specific point wasn't made, I wanted to add it. A legal scholar, University of Texas School of Law professor Steve Vladeck, says Kerry did not violate the act and he explains why. That explanation doesn't apply to Michael Flynn.

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Now if you want to argue that Kerry shouldn't have done this in secret (fine) - though I'm not sure what a "meeting in secret" actually means. That, quite literally, is vague terminology that sounds good. If they truly wanted to have the meeting in secret, do it in secure video conference, don't fly to Iran. It wasn't a "secret meeting" it was a meeting and anyone who disagrees, please provide a legal definition of a secret meeting and show me how this fits that criteria.

If you want to say that what Kerry did was dumb and that it backfired, that's something I lean towards agreeing with. I'm not sure what Kerry accomplished with meeting with European and Iranian leaders that wasn't made worse by Trump calling Kerry out. But Kerry didn't have a meeting about making new policy and that puts him on very different ground than Flynn, who had meetings about precisely that.

Trump had been publicly discussing ending the agreement, so one could argue that Kerry may have broken the spirit of the law, (or you could argue that he was simply acting as a lobbyist and 100% legally because the meeting was regarding existing policy), but even if you take the argument that he deliberately went against what Trump was proposing as a likely outcome, Kerry didn't violate the Logan act because it was still policy at the time.

Answer 3

The Logan Act (1 Stat. 613, 18 U.S.C. § 953, enacted January 30, 1799) is a United States federal law that criminalizes negotiation by unauthorized persons with foreign governments having a dispute with the United States.

IANAL, but "negotiations" seems to suggest a quid pro quo, (you do this for me, I'll do that for you). Is Kerry promising to do anything? Is Kerry in a position to "shape" Trump's foreign policy

Flynn, on the other hand, as a candidate's surrogate MIGHT have been suggesting that Trump could act in a certain fashion if Russia will accede to his request.

The Logan Act charge against either Flynn or Kerry are rather flimsy.

So, one might conclude that there is a difference, however neither would be found guilty of a Logan Act violation. (My opinion based on past enforcement of the Logan Act.)